Taxing remote gambling on a place of consumption basis: summary of consultation responses

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1 Taxing remote gambling on a place of consumption basis: summary of consultation responses August 2013

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3 Taxing remote gambling on a place of consumption basis: summary of consultation responses August 2013

4 Crown copyright 2013 You may re-use this information (excluding logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit or Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. Any enquiries regarding this publication should be sent to us at You can download this publication from ISBN PU1554

5 Contents Page Chapter 1 Introduction 3 Chapter 2 Policy development since the consultation 5 Chapter 3 Consultation responses 9 Annex A Consultation responses received 25 Annex B List of meetings 27 Annex C Draft legislation 29 1

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7 1 Introduction 1.1 Remote gambling is gambling using remote communication, for example Internet gaming or telephone betting. Under the current tax rules, gambling activities are subject to UK gambling taxes on a place of supply basis. This means that gambling operators supplying from the UK pay tax on all of their gross gambling profits while operators supplying the UK from other countries pay no UK gambling taxes. 1.2 At Budget 2012, the Government announced that gambling taxes in the UK will be reformed so that remote gambling is taxed on a place of consumption basis. With a place of consumption tax basis, remote gambling operators will pay tax on the gross gambling profits generated from UK customers, no matter where in the world the operator itself is located. Premises based gambling will be unaffected. 1.3 A place of consumption approach supports the Government s objective of a fairer tax system. Currently, remote gambling operators can and do avoid UK gambling taxes by supplying from abroad. The reform will level the playing field in terms of UK gambling tax liability and provide a fairer basis for competition between remote gambling operators supplying the UK market from the UK and from overseas. The reforms will also help improve the sustainability of the UK s tax base by ensuring that remote gambling, alongside other gambling products, makes a fair contribution to UK tax receipts. The reform will bring additional public revenues from operators based abroad who supply remote gambling to the UK. 1.4 The consultation document Taxing remote gambling on a place of consumption basis: consultation on policy design sought views on the specific design characteristics of a place of consumption based tax regime. Responses and comments were invited from businesses, trade bodies and other interested parties between 5 April and 28 June This document summarises the comments received during the consultation and the Government s broad response and current policy position, outlines the detailed design characteristics of a place of consumption based tax regime for remote gambling, and sets out the Government s proposed next steps. The Government has continued to engage with the industry beyond the consultation period and welcomes further views and comment on the detail of the reform. 1.5 The consultation received 40 written responses from businesses, industry representative groups, other interested bodies and individuals. A list of respondents is available in Annex A. Officials also held a number of meetings with businesses and industry representatives, and a list of meetings is included in Annex B. 1.6 Finally, Annex C includes a draft of the key Finance Bill clauses for comment. The Government welcomes views by 30 September 2013 on the issues raised in this document and the draft legislation. The final design of the reformed tax regime and the draft clauses may change in light of comments received and as work continues. The Government expects to publish a complete draft of the relevant Finance Bill clauses for a full technical consultation in the autumn. Following legislation in Finance Bill 2014, the Government plans to implement the reform on 1 December HMRC will issue guidance to help businesses prepare for implementation. 1.7 Please address any comments on the draft legislation to Mark Banks in HM Revenue and Customs ( , and general queries on the reform to Graham Hunt in HM Treasury ( , 3

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9 2 Policy development since the consultation 2.1 It was clear from the consultation that two specific areas were of particular concern to respondents. These were the way in which the Government would define a UK customer and the mechanisms that would be put in place to ensure the successful enforcement of the reformed tax regimes. 2.2 Having taken into account the concerns of consultation respondents on the definition of UK customer and the right enforcement mechanisms for the reformed regimes, the Government believes it has settled on the right approach. As two of the most significant areas of the reforms the Government welcomes further comment on these issues, which may be refined further. Definition of UK person 2.3 Determining whether transactions are made in the UK or by a UK person is essential for accurately determining tax liability under a place of consumption based regime. Question 4 in the consultation proposed a reasonableness test, where operators would be expected to take reasonable steps to determine the location of their customers in order to correctly identify UK customers. The consultation paper suggested that operators could use a number of methods which would be considered reasonable; including customer self-verification, instantaneous tracking technology (such as geo-location software on smartphones) and the registered payment address of a customer. 2.4 There was concern among some operators that there was not sufficient certainty regarding the definition of reasonable. The majority of operators also argued that determining a customer s physical location at the time each gamble was made would be very difficult to achieve and costly to oversee. This would be especially so for remote gambling undertaken via a mobile phone or tablet computer, where a customer may gamble whilst moving (for example as they travel). 2.5 The majority of respondents preferred a system where their UK customers (a UK person ) were determined by reference to where the customer usually lives. This approach would also provide a clearer definition of UK consumption which would be easier to comply with. 2.6 In light of the preference of the majority of consultation responses, the Government has decided that for the purposes of remote gambling the definition of UK customers will be based on where the customer usually lives. This will mean that, for example, remote gambling undertaken by a customer who usually lives in the UK whilst temporarily on holiday abroad will be liable for tax (as long as that gambling could have been accessed from the UK). Conversely, remote gambling undertaken by a customer who usually lives abroad whilst temporarily in the UK will not be. Premises based gambling will be unaffected. 2.7 Many operators are already subject to know your customer regulatory requirements where operators are required to collect information on their customers. In many cases information can be verified from multiple sources. This approach is therefore expected to minimise any additional administrative burden on operators. HMRC will publish guidance on determining the place where customers usually live ahead of the implementation of the reform. 5

10 Enforcing a place of consumption based gambling tax regime 2.8 Throughout the consultation process many existing remote gambling operators expressed concern about enforcement. In particular, since many liable operators may be based abroad and have no assets, staff or presence in the UK at present, there was a fear that some operators would seek to continue to trade with UK customers without paying tax. If this happened, this could disadvantage those operators who correctly accounted for and paid tax which was due. The majority of respondents raised enforcement concerns as part of the consultation and felt that the reform should be supported by a strong and robust enforcement regime. 2.9 The consultation paper proposed that, in some circumstances, the Remote Operating Licence (ROL) of a non-compliant operator would be revoked and that a criminal penalty for failure to provide HMRC with a security (when one was required) should be introduced. Failure to provide for a security when one is required is already a criminal offence for some other taxes. This was supported by many respondents Following the comments received during the consultation the Government will employ a number of tools to help ensure compliance with the reformed tax regime. In the first instance these will include: HMRC working together with other tax jurisdictions to recover outstanding tax debts, including through the EU Mutual Assistance in the Recovery of Debt (MARD) directive; HMRC requiring operators based in jurisdictions with which the UK does not have a reliable debt collection and assistance agreement, to either: appoint a joint and severally liable fiscal representative; or appoint an administrative representative (who would not be joint and severally liable) and provide HMRC with a security HMRC requiring operators with a poor compliance history to provide HMRC with a security Following support from respondents, the Government intends that a new summary criminal offence will be created for operators that are required but fail to provide a security to HMRC. Sufficient opportunity will be provided for operators to provide a security, and a criminal conviction would only be sought in appropriate circumstances. Any decision by HMRC to require a security from a remote gambling operator will be accompanied by the statutory right to an independent review of that decision and the right of appeal to an independent tribunal In addition to the creation of a summary criminal offence for the failure to provide a security when one is required, the Government intends to create summary criminal offences for the failure to appoint a fiscal or administrative representative (when one is required). Remote gaming duty, general betting duty and pool betting duty already provide for indictable criminal offences for the fraudulent evasion of the duties. For remote gaming duty, this offence carries upon conviction an unlimited fine and imprisonment of up to seven years. The Government intends to mirror these penalties for general betting duty and pool betting duty Finally, in serious cases of non compliance the consultation proposed that an operator would have their ROL from the Gambling Commission revoked following a direction from HMRC. Following reforms to remote gambling regulation led by the Department for Culture, Media and Sport, all operators based anywhere in the world who provide gambling to customers based in Great Britain will be required to hold a ROL from the Gambling Commission. Without a ROL, a remote gambling operator could not legally advertise remote gambling or transact with customers in Great Britain. 6

11 2.14 The Government s current intention is that where a ROL holder breaches certain tax related trigger points, and does not rectify them within a reasonable period, HMRC will initiate a process that will require the Gambling Commission to suspend an operator s ROL. The Government intends that these triggers will include: The licence holder fails to register for general betting duty, pool betting duty or remote gaming duty; The licence holder fails to adhere to key registration requirements such as a failure to provide a security or representative when one is required or a failure to provide HMRC with access to records to ensure that tax is paid accurately; A time to pay agreement between the operator and HMRC (where applicable) has broken down and is not replaced by a further time to pay agreement; HMRC issues an assessment for unpaid duty and this assessment is not paid by the due date and no appeal is made; The licence holder fails to pay tax due and this failure is over a time/ amount threshold. As set out in the consultation, this would be: a default on tax liabilities of two periods, with the default extending in each case up to three months (i.e. duty due in respect of two accounting periods is paid late) within a rolling five year period; or a default on tax liability of one accounting period, with the default extending to six months, within a rolling five year period Following the suspension of a ROL, if an operator does not fulfil any outstanding tax requirements, HMRC will require the Gambling Commission to permanently revoke the ROL after 6 months (subject to any appeal made by the operator). The decision to revoke will be made by HMRC rather than the Gambling Commission, and as such operators will be able to appeal to the Tax Tribunal before a licence is revoked. Full guidance on the licence revocation process will be issued by HMRC ahead of the implementation of the reform Once a licence had been revoked, if the operator wanted to apply for a new ROL they would have to apply to the Gambling Commission. As the licence revocation process relates to tax failures (rather than regulatory failures) the Government intends that the Gambling Commission could not issue a new ROL to an operator who had previously had a ROL revoked until or unless any outstanding tax failures had been rectified. 7

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13 3 Consultation responses 3.1 This chapter summarises the responses received to the questions in the consultation 1 and outlines the Government s response. General questions The Government welcomes general views on the proposed policy design, and also seeks answers to some specific questions summarised below. The Government also welcomes comments on the summary of tax impacts provided in Chapter 5. Information received during the consultation will be used to refine the analysis of the impacts. 3.2 Many respondents gave their thoughts on the principle of moving to a place of consumption tax basis for remote gambling and on the gambling tax regime more generally. Views on the reforms were mixed; some respondents argued that a place of consumption tax basis would help to level the playing field in terms of UK tax liability between operators supplying the UK market from the UK and those supplying from overseas. Others argued that the reform would damage profitability (for those firms supplying from overseas) and distort competition. 3.3 Many respondents commented on the potential impact of the reform on competition within the remote gambling sector. In particular, some respondents were concerned that inadequate enforcement of a place of consumption based tax regime would distort competition in favour of non-compliant operators who would seek to evade paying tax that was legally due. Some respondents stressed the need for strong enforcement mechanisms and low rates of duty, both to ensure compliance with the regime and to minimise any distortion to competition. 3.4 There were some more general comments on the UK tax system. Specifically, some respondents noted that the exemption of gambling from VAT in the UK and the inability to recover input VAT against UK gambling tax liabilities is a significant deterrent to businesses locating their remote gambling operations in the UK. Some respondents argued that allowing businesses to recover input VAT paid on purchases against their gambling duty liabilities would improve the competitiveness of the UK tax system. The Government s response 3.5 The Government has carefully considered the potential impact of the reform on competition in the remote gambling market. Bringing all operators supplying gambling to UK consumers within the UK gambling tax regime will improve fairness and competition. 3.6 Tax rates were beyond the scope of the consultation. The Government keeps all taxes under review and welcomes the information received regarding the estimated impact of tax levels on gambling businesses. The scope of the consultation was limited to the gambling tax regime and the Government has not therefore considered changes to the treatment of other taxes such as VAT. 1 Most respondents did not provide a response to every question in the consultation document. References to respondents or responses are therefore in respect of those who responded to the respective question. 9

14 Specific questions Scope of a place of consumption basis of taxation (Question 1) It is envisaged that only the changes necessary to move general betting duty, pool betting duty and remote gaming duty to a place of consumption basis will be made. (i) What, if any, other changes to the existing duty regimes that have not been discussed in this document are required? (ii) Do you have any other comments on the scope or design of the reform? 3.7 Broadly speaking, respondents did not identify any changes that would need to be made to other duty regimes as part of the reform. However, some respondents called for greater harmonisation across the wider gambling duty regimes, such as a move toward uniform tax rates for all gambling activities. 3.8 Many respondents had comments on the scope of the reform. The most prevalent of these regarded the tax treatment of marketing costs, including bonuses and free-plays. A number of respondents suggested that these player incentives should be excluded entirely from all gambling taxes. These respondents argued this would have the effect of making the tax regimes more generous toward operators and would encourage operators to offer promotions, and could also help lessen the distortion in competition between compliant and non-compliant operators. The Government s response 3.9 As outlined in the consultation document, the reform to gambling taxation will be limited to changes to general betting duty, pool betting duty and remote gaming duty. In most areas the reform will not extend beyond the changes necessary to ensure gambling by UK customers is taxed on a place of consumption basis, although some changes will be made to the administration of the taxes. For example, the Government intends that a quarterly accounting period will be adopted for the three taxes, and that it will be mandatory for ROL holders to register and file returns electronically The Government has not been persuaded that changes to the tax treatment of free plays or bonuses are appropriate at this time. As such, the Government intends that the tax treatment of player promotions and incentives such as bonuses and free plays for general betting duty, pool betting duty and remote gaming duty will remain unchanged from the current situation for those taxes, as set out in relevant gambling duties legislation. (Question 2) What, if any, specific gambling products (other than those discussed in this consultation document) need special consideration in regards to a move to a place of consumption basis of taxation? 3.11 Respondents asked the Government to give special consideration to player to player games, such as poker, where the gambling operator receives a commission or charge for the use of facilities. In the case of such games, respondents suggested that since operators did not have an interest in the outcome of the game and simply facilitated gaming between players, tax should be due only on the participation fees received from UK customers Several respondents suggested that the Government should review the tax treatment of social gaming and consider bringing it into scope of the reformed duty regime. Social gaming can include games where the player pays to take part, or to have access to certain features in the game, but cannot win a prize. The Government s response 3.13 As proposed in the consultation document and in light of responses received, the Government has decided that the effect of the charging provision for person to person games, such as poker, will be to tax the amount that is retained from UK customers. For games against the house, the basis of remote gaming duty will be the difference between the amount that is 10

15 due in stakes from UK customers and the amount that is paid out to those customers as winnings (in respect of those stakes) Social gaming where a prize cannot be won was out of the scope of the consultation and of the reform, since it is not currently defined as gambling either by social or tax legislation. The Government will continue to monitor the market for social gaming and other associated products to consider any impact on gambling taxation. (Question 3) Other countries have moved, or are considering moving, to taxing remote gambling on a place of consumption basis. What, if any, lessons from your experience in providing remote gambling to customers in other countries should the UK take into account? 3.15 Responses focused on the wider effects of the reform on remote gambling markets. A number of respondents noted examples in other countries where overly burdensome tax and regulatory regimes increased costs for operators, and therefore put them at a competitive disadvantage compared to non-compliant competitors. Respondents noted that any rise in illegal shadow or grey market activity from non-compliant, unlicensed operators that resulted from the reform could potentially compromise customer protection and UK tax revenues. A number of operators thought this risk would increase if UK gambling tax rates were increased Some respondents said that countries which tax gambling gross profits, as the UK does, generally had more success in reforming their gambling tax regimes compared to countries with turnover-based taxes. This was due to the relatively high distortionary effect that turnover-based tax structures can have Additionally some respondents noted that the Government may find it difficult to enforce a place of consumption based tax regime, as many remote gambling businesses have no assets, staff or physical presence in the UK at present. In addition respondents noted that the need to ensure compliance would have to be balanced against ensuring that the reformed tax regime is not so restrictive as to drive operators out of the market. The Government s response 3.18 The Government welcomes the experiences shared by gambling operators active in other jurisdictions and appreciates that international comparisons must reflect the very different tax and regulatory approaches different countries have taken in respect of gambling The Government s proposed approach to the successful enforcement of the gambling tax regimes has been outlined in the previous chapter and is discussed in more detail below in response to question 22 and 23. Defining the customer s location (Question 4) It is proposed that operators will have to take reasonable steps to determine the location of their customers. (i) Do you agree with a reasonableness test approach? If not, what alternative solutions would you propose? (ii) Are there any products for which an operator would be unable to make a reasonable attempt to determine whether the customer was in the UK or where it would be unclear when a bet was made or when the facilities were used? 3.20 As outlined in chapter 2, most respondents argued that determining a customer s physical location at the time each gamble was made would very difficult to achieve, especially for mobile gaming or player to player games where customers may participate in a game via a third party operator. Respondents also expressed concerns over the definition of reasonable, administrative burdens and the overall cost of determining the physical location of customers. Many respondents expressed a preference for customer location to be determined by reference to the customer s normal place of residence. 11

16 The Government s response 3.21 In light of the preference of the majority of consultation responses, the Government has decided that for the purposes of remote gambling the definition of UK customers (a UK person ) will be based on where the customer usually lives. Betting on premises in the UK (such as betting taking place inside licensed betting operators) will continue to be subject to tax by reference to the location of the premises without the need for the operator to determine whether the customer is a UK person Many operators are already subject to know your customer regulatory requirements, and are required to determine their customers address. In many cases this information can be supported from multiple sources (for example, the customer s given address and the customer s credit card details). This approach is therefore expected to minimise any additional administrative burden on operators. HMRC will publish guidance on determining the place where customers usually live ahead of the implementation of the reform. General betting duty (Question 5) The proposed arrangements for bookmakers and betting exchanges are outlined in 3.9 and What, if any, products or arrangements would require further consideration? 3.23 Most respondents were content with the proposed arrangements for bookmakers and betting exchanges and did not identify any products or arrangements that would require further consideration. Some respondents suggested that business users of betting exchanges could potentially avoid paying gambling taxes at present and that the taxation of betting exchanges should therefore be tightened or considered in more detail separately by the Government. The Government s response 3.24 As proposed in the consultation document, general betting duty will be charged on a bookmaker s UK net stake receipts. In the case of remote operators, UK net stake receipts will be calculated as the difference between the amount the bookmaker is due in stakes from UK customers and the amount it has paid out in winnings to those customers. Bookmakers will continue to be entitled to carry forward losses under general betting duty, but only to the extent of their UK net stake receipts UK-based bookmakers taking bets via betting exchanges are already liable to general betting duty. Under the reformed regime, those carrying on the business of bookmaking via betting exchanges based anywhere in the world will be liable to duty on their UK net stake receipts in respect of their transactions with UK customers. (Question 6) Do you agree that spread betting should continue to be liable to general betting duty on a place of supply basis? 3.26 A number of respondents argued that spread betting should be subject to the same tax treatment as fixed-odds betting, on the basis that continuing to tax spread betting on a place of supply basis would represent unequal treatment and could give rise to tax avoidance opportunities. Respondents noted that if spread betting operators based abroad were not subject to UK gambling duties, those operators would enjoy a tax advantage, and could even structure spread bets to appear very similar to fixed-odds bets, potentially distorting competition One respondent noted that continuing to tax spread betting operators on a place of supply basis would put UK-based spread betting operators at a competitive disadvantage to firms based abroad, since they would continue to be liable to duty on transactions in respect of both customers based in the UK and those based abroad. 12

17 The Government s response 3.28 Spread betting to UK customers is mostly provided by UK-based firms and operates under a different regulatory regime from the majority of gambling activity, with operators regulated by the Financial Conduct Authority rather than the Gambling Commission. This recognises the differences between spread betting and other forms of gambling, and spread betting s similarity with some forms of financial trading. In light of this the Government will maintain the taxation of spread betting on a place of supply basis, though will continue to monitor the provision of spread bets. Pool betting duty (Question 7) Under the new regime, the basis for net pool betting receipts would be the difference between stakes due from, and winnings paid to customers in the UK. (i) Would you support such an approach for traditional pools and/or other products that are subject to pool betting duty? (ii) If not, what other approaches would you propose? (iii) Could you provide further information on your business model relevant to a move to a consumption based taxation regime? (Question 8) It is envisaged that pool betting on horses and dogs will be moved to a place of consumption basis of taxation. (i) If you operate pool betting on horses and dogs, what, if any, issues experienced by pool betting promoters discussed in 3.17 also apply to you? (ii) Should, in your view, pool betting on horses and dogs remain liable to general betting duty or would a revised pool betting duty be more appropriate? 3.29 Pool betting duty is currently charged on stakes plus expenses minus prizes. Some respondents noted that the expenses provision is outdated and creates unnecessary complexity for operators. Respondents also noted that, in the case of commingled pools, where two or more operators merge pools to offer larger prizes, operators may face difficulties identifying whether customers of other operators were UK customers, and therefore in accounting for duty liability Respondents also noted that continuing to tax pool betting on a stakes minus prizes formula under a place of consumption system could lead to high levels of duty volatility for an operator, depending on whether the winner of a large pool was a UK or non-uk customer. To overcome these issues and to reflect the fact that pool betting operators do not have an interest in the outcome of the gamble, respondents suggested that duty be applied to an operators commission on transactions with UK customers, rather than to net stake receipts Respondents who expressed a preference were in favour of pool betting on horses and dogs remaining liable to general betting duty (rather than moving to the pool betting duty regime). The Government s response 3.32 In light of the consultation responses received, the Government intends that pari-mutuel pool betting on horses and dogs will remain liable to general betting duty though calculated in a similar way to other pari-mutuel pool bets. The Government intends that the basis for general betting duty and pool betting duty in the case of pari-mutuel pool bets will be the amount that is retained from UK customers. This will be calculated on a proportional basis. This will make pool betting operators less susceptible to duty volatility than would otherwise have been the case Betting other than pari-mutuel betting that is liable to pool betting duty will continue to be subject to pool betting duty on a gross profits basis (i.e. stakes due minus prizes paid). The Government has decided, in light of responses received, to remove the expenses provision that imposes a duty liability on certain expenses of the promoter or associated persons. 13

18 Remote gaming duty (Question 9) It is proposed that remote gaming duty will be charged on the provision of facilities for remote gaming to customers in the UK. What, if any, products or arrangements exist for which the proposed approach would cause concerns? 3.34 Some respondents noted that it is not always clear whether the provider of the network or the operator with whom the customer gambles is considered to be the person providing the facilities for remote gaming, particularly in cases where the software for remote gaming is provided by a third-party. As such some respondents felt that the definition of provision of facilities would need to be clarified further Some respondents reiterated that in the case of player to player games such as poker, tax should be due on participation fees from UK customers. The Government s response 3.36 Following the concerns raised by many operators surrounding the definition of provision of facilities, the Government intends that the person liable for remote gaming duty will be the person with whom the customer contracts or enters into arrangements with for the gamble. While in the vast majority of cases this will be the same person as the person who holds a Gambling Commission ROL, the Government intends that ROL holders will also be made joint and severally liable to duty where this is not the case. Liability for the duty (Question 10) It is proposed that the licence holder will be made jointly and severally liable to duties on remote gambling. Are there any commercial circumstances in which the licence holder is unaware of dutiable profits and therefore at present is unable to ensure that the right tax is paid? 3.37 Some respondents raised concerns with the extension of joint and several liability to members of a network, where a single gambling offering is provided by two or more operators. In particular, they noted that operators would not always be able to account for their partners duty liabilities, and that they should therefore not be made liable in these circumstances However, some operators responded that it would be highly unlikely that a holder of a ROL would be unaware of dutiable profits. Some highlighted that, in cases where tax liability is shared, for example between a customer-facing operator and a service provider, there may be short periods during a commercial reconciliation period, when profits or losses are settled, when the holder of a ROL would not be aware of how much tax they would be liable to. Beyond the reconciliation period, ROL holders would have full sight of the profits from the offering, and therefore of their tax liability. The Government s response 3.39 The Government has taken respondents concerns into consideration and intends that, as outlined in the consultation, joint and several liability will extend to all those holding a ROL for a relevant remote gambling offering. Joint and several liability will not extend to different companies who offer gambling as part of a network, such as a single poker game with customers of different operators, but who are not corporately affiliated. 14

19 (Question 11) Under the current legislation, a number of people associated with the provision of remote gambling can be liable to gambling duties (see Table 3.A). If you engage in arrangements with others to jointly provide remote gambling to UK customers, do you have (or could you contract for) sufficient certainty as to who would be liable to the duty? 3.40 The majority of respondents said that liability could be clearly defined in existing commercial contracts, and that they would therefore have sufficient certainty as to who would be liable to pay duty. Some respondents noted that certainty would be contingent on liability being clearly defined in legislation. The Government s response 3.41 As stated in the response to Question 9, duty liability will be attached to the person with whom the gambler contracts or enters into arrangements for the gamble. The Government believes this approach will provide greater clarity to operators and welcomes views on whether there are any complex commercial arrangements which may make duty liability difficult to determine. HMRC will publish guidance to assist operators to determine duty liability ahead of the implementation of the reform. (Question 12) It is envisaged that where a non-compliant operator accesses the UK market using a critical partner, the partner could become liable for future duty. (i) What are your views on this approach? (ii) Which critical partners should this extend to and what arrangements between the principal and its critical partners should be in scope? (iii) To what financial extent should critical partners be liable to a non-compliant operator s future duty? (iv) What notice period would critical partners require before becoming liable for duty? 3.42 While most respondents were in favour of extending liability to critical partners of noncompliant operators in some way, on the basis that it would help ensure compliance, views on how this should be achieved were mixed. A number of respondents were in favour of critical partners being broadly defined to include all affiliates and commercial partners of remote gambling operators However some respondents raised strong concerns that a broad definition of critical partner could deter non gambling commercial partners and service providers, such as financial institutions and payment service providers, from entering into contracts with remote gambling businesses. This could cause significant disruption to the remote gambling industry and may have wide ranging unintended consequences. The Government s response 3.44 After considering the issue further, the Government has decided not to extend tax liability to the critical partners of non-compliant operators. As noted by many of the consultation responses, a broad definition of critical partner could risk extending tax liability beyond gambling operators to affiliates and others who legitimately have no sight of the profits from a remote gambling offering. Such an approach may have significant unintended consequences for the remote gambling market. A narrow definition may have fewer unintended effects but would be relatively easy to bypass by non-compliant operators and their commercial partners, who could reorganise their contractual arrangements in such a way so that they did not fall under the critical partner definition In light of these difficulties, the Government does not intend to extend liability to the critical partners of non-compliant operators at this time. The Government will continue to consider options for extending liability to critical partners of non-compliant operators in future, and would welcome proposals that would achieve this without causing undue disruption to compliant operators or creating adverse consequences within the remote gambling market. 15

20 Transition to a place of consumption based taxation system (Question 13) It is envisaged that overseas operators will have to account for duty on gross gambling profits generated from UK customers after the implementation date. (i) Do you agree with this approach? (ii) If not, what alternative approaches do you propose? (iii) Are there any circumstances where this approach would not be possible? 3.46 Most respondents were content with the approach proposed in the consultation. A number of respondents felt that gambles from UK customers placed before the implementation date where winnings in respect of those gambles were paid out after the implementation date, should attract relief. A number of respondents requested a long-lead in time before implementation of the reformed tax regime, so that they could adequately prepare their accounting systems. The Government s response 3.47 In light of the responses received and in line with the consultation, the Government intends that operators will be required to account for duty on dutiable profits generated from UK customers after the implementation of the reform Under this approach, where winnings are paid out to UK customers after the implementation date in respect of stakes received before that date, it will be possible to account for those winnings in the duty calculation. This will ensure that an inflated duty liability in the first accounting period after implementation is not incurred in respect of transactions coming into tax for the first time. In order to benefit from this, remote gambling operators would need to determine which stakes were from UK customers before the implementation date and correctly ascribe winnings after the implementation date to those customers. Repeal of double taxation relief (Question 14) It is proposed that the double taxation relief for remote gambling will cease upon implementation of a place of consumption basis of taxation. Are there any circumstances under which double taxation relief would still be required? (Question 15) The final reconciliation for the double taxation relief would be conducted at the end of the accounting period ending after the implementation date of a place of consumption basis of taxation. (i) Do you agree with such an approach? (ii) If not, do you have any views on alternative means to ensure that the right amount of relief is claimed? 3.49 Several respondents said that double taxation relief for remote gambling should only cease if there was certainty that there was no longer any chance for double taxation to occur in the future. Responses also noted that double taxation relief should only be repealed after the final claims had been made Some respondents suggested double taxation relief should be extended to operators based outside the UK where those operators were based in jurisdictions with place of supply based tax regimes, as operators in those jurisdictions could be subject to double taxation on their transactions with UK customers. Some respondents noted that even where other jurisdictions operated place of consumption based tax regimes, the potential for future double taxation still existed, for example if different jurisdictions defined customer location differently Finally, one respondent highlighted the possibility of the future double taxation of spread betting, which will remain taxed on a place of supply basis in the UK. Spread betting by non-uk customers with UK-based operators could be subject to double taxation in cases where those customers are from jurisdictions with place of consumption based tax regimes for spread betting. 16

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